The Underlying Attack in the Harvard Admissions Lawsuit

The Underlying Attack in the Harvard Admissions Lawsuit

A lawsuit claiming that Asian-American students were victims of illegal discrimination in the Harvard College admissions process goes to trial in Boston this week. The plaintiffs assert that Harvard uses what amounts to an unlawful quota system, which results in qualified Asian-Americans being denied admission, in violation of the Civil Rights Act of 1964. But, at its core, the lawsuit reflects the American conservative movement’s legal and political assault on people of color, which has been endorsed and abetted by President Trump. The Trump Administration has sought to limit voting rights, backing voter-suppression efforts; it has demonized immigrants; the President himself has repeatedly targeted prominent African-Americans for abuse. The Trump Administration is also supporting the Harvard lawsuit.

The lawsuit is the latest brainchild of Edward Blum, a conservative activist who has made a career of attacking laws and policies that have historically assisted African-Americans. Blum shepherded the Shelby County lawsuit, which the Supreme Court used, in 2013, to gut the Voting Rights Act of 1965. He was also behind Fisher v. University of Texas, which challenged the admissions practices at U.T., and which twice failed, by a narrow margin, in the Supreme Court. The Harvard case is essentially a rerun of Fisher, except with the prospect of review by a newly reinforced and expanded conservative majority on the Court.

The gist of the case is straightforward. Asian-American students with high grades and excellent scores on standardized tests claim that they were denied admission while students with lower grades and scores got in. In response, Harvard asserts that grades and scores are not the only factors it considers in admissions, but rather that the university conducts a “holistic” review of each applicant. (Asian-American students make up about twenty-three per cent of the class of 2022. African-Americans constitute about fifteen per cent, and Latinos twelve. Students of all other races, most of whom are white, account for fifty per cent.) Harvard acknowledges that, as it makes its admission decisions, it does so with an eye for academic excellence but also for diversity—including race, among other factors—to create the best learning environment for its students.

This is Blum’s real target: the consideration of race in any decision by a university or a government. “Most Americans don’t want race to be part of your application to college,” Blum told the Times. “They don’t want the police to use race as a profiling tool to prevent crime. They don’t want prosecutors to use race in the makeup of a jury. Your race and your ethnicity should not be something used to help you or harm you in your life’s endeavors.” Some observers, including my colleague Jeannie Suk Gersen, have written that the case is aimed only at remedying discrimination against Asians, but I think that the stakes are higher. As Blum has acknowledged, he’s out to end affirmative action—and all considerations of race—in all circumstances. The trial in this case, which has been scheduled to last three weeks, is taking place before the U.S. district judge Allison D. Burroughs, in Boston, but there is little doubt that the case will ultimately wind up before the Supreme Court.

Harvard’s admissions practices allow considerations of race, ethnicity, and economic background as a “plus”—a factor that the school may consider in making decisions. In 1978, Justice Lewis Powell’s dispositive opinion in Regents of the University of California v. Bakke explicitly endorsed the Harvard approach, which is still in effect today. Such a practice, Powell wrote, means that schools can choose students who “exhibit qualities more likely to promote beneficial educational pluralism”—diversity, in more current diction. The Supreme Court has repeatedly reaffirmed the Bakke standard, including in the two Fisher cases and in the 2003 case Grutter v. Bollinger, which involved admissions at the University of Michigan Law School. Anthony Kennedy dissented from Sandra Day O’Connor’s opinion in Grutter, but he later supplied the key vote, along with the Court’s liberals, in supporting affirmative action in the latest Fisher decision. The replacement of Kennedy with Brett Kavanaugh turns the majority in those cases into likely losers now.

The argument against affirmative action in college admissions (and in favor of the plaintiffs in the Harvard case) rests on a claim of objectivity—that grades and test scores, which can be reduced to numbers, are the only legitimate grounds on which to differentiate students from one another. In fact, race remains a critical part of identity in contemporary America, and diversity represents a gift both to its direct beneficiaries and to the schools, which can enjoy the perspectives of students of different backgrounds. In the Grutter case, Justice O’Connor was moved by the amicus briefs submitted by retired military officials and current corporate executives who said that they needed a diverse pool of future leaders equipped to take over when white males became a shrinking part of the population. Then, as now, a diverse student body is both a national-security and an economic imperative.

Blum and his allies can talk all they want about level playing fields and race neutrality, but their legal and policy efforts all point in the same direction—toward less power and influence for groups that are disproportionately affected by the disadvantages of poverty and low incomes. This case comes in the camouflage of solidarity with Asian-Americans, but, in reality, it’s just the same as the others.